The Military Justice Act of 1968

• Author: By Senator Sam J. Ervin, Jr.
• Pages: 04

I. INTRODUCTION

It has been charged recently that military courts are to justice what military bands are to music. This was unquestionably true prior to enactment in 1950 of the Uniform Code of Military Justice,' and was to some extent true under the Uniform Code. However, upon enactment last year of the Military Justice Act of 1968,2 the first major reform of the military justice system in almost two decades, military justice attained virtual parity with civilian criminal justice. This article will discuss the major provisions of that Act, their background, and the promise they hold for significant improvements in the brand of justice afforded by military criminal courts. 11. BACKGROUND

Prior to 1960 the American in uniform had been at the mercy of legal procedures little changed since before the Revolutionary War, procedures originally designed for mercenaries-not for citizen soldiers loath to give up the rights they were defending. So antiquated and unjust was the system that after World War I1 a great protest came from returning veterans demanding re. forms which would guarantee to servicemen basic principles of due process of law. This outcry resulted in the adoption of the Uniform Code.s It represented a revolution in military law, and in many respects contained due process safeguards not then guaranteed in civilian courts. For example, the right to legally qualified counsel was made mandatory in general court-martial cases' thirteen year8 before the Supreme Court's famous GideonJ

N&h Carolina.

'Onifom Code of Milifmy Justice Act, 10 U.S.C. 01 801 st LISP. (1964) [hereafter cited as UCMJI.

'Military Justice Act of 1868, Pub. L. No. 90-632. 82 Stat. I335 (1968)

[hereafter cited as MJAl (effective 1 Aug. 1969; ~iee note 67 in??.%),

'Morgan, The Background of the Unifom Cmds o/ Milihw Juetics, 6 VAND. L. RN. 108 (1913); White, The L 7 m / m Code o/ MiI

187, 1 9 M 0 9 (19611

335 (1865).

A00 iS0PB 17

lUCMJ art. 27.'Gideon 9. Wainwright, 3'72 U.S.

ruling in 1963 extended this right to state court felony trials. Servicemen under investigation for criminal offenses under the Code were entitled to be informed of the nature of the suspected offense, and to be advised that they need not make a statement, and that any statement made might be used in evidence against them6 fifteen years before the Miiaride. ruling secured these rights to suspects in state criminal proceedings.

During the eighteen years between the effective date of the Uniform Code and the enactment of the 1968 Act, however, many advances were made in the administration of criminal justice by civilian courts that were not reflected in similar advances in military court proceedings. In addition, extended ex-perience aith the Uniiorm Code had revealed defects and made apparent the need for its modification and reform. To correct those deficiencies and return military justice to the leading position in American law it had attained in 1950 with enactment of the Vniform Code, Cangreja enacted the Military Justice Act of 1968.

111. LEGISLATIVE HISTORY

When the President signed the Military Justice Act on October 24, 1968, the legislation had been the subject of two rounds of hearing8 in the Senate and one in the House of Representatives and intensive study and nliratigation by the Subcommittee on Constitutional Rishts mei R period oi almost ten years. In spite of the cantroversid nailre of many of the reforms and concerted resistance to some or d l of them by the armed services virtually until the eve of enactment, the bill pasaed unanimously in bath the Senate find the House. The progress of the legislation from idea to enactment 1s an interesting story; it may shed some light on why it did not happen earlier and why it happened so smoothly when it did.

In 1962, fallowinp hundreds of complaints from servicemen and their families and zn intensive field investigation, the Subcommittee on Constitutional Rights held it8 first hearing on military justice: Testimony was received from witnesses with a wide range of experience in military law, both within and out-aide of the military After the hearings a comprehensive ques-

THE MILITARY JUSTICE ACT OF 1968

tiannaire was sent to each of the services which developed additional information on particular problem areas in military law highlighted by the hearings. The published hearings consisted of almost 1,000 pages. A summary report of the hearings published in 1963 presented the Subcommittee's conclusions and recommendations.

Based upon this groundwork, I introduced on August 6, 1963, eighteen separate legidative proposals designed to protect the constitutional rights of servicemen and to perfect the administration of justice in the armed forces.'O On September 25, 1963, Representative Victor Wickersham of Oklahoma introduced identical bills in the House of Representatives." During the succeeding month8 these propos~18 were subjected to intensive study by both military and civilian experts. Alternative suggestions and revised language were submitted from many sources.

On January 26, 1966, shortly after the 89th Congress convened, I again introduced the eighteen proposals of the prior Congress and later, on February 9, 1966, I introduced two much less inclusive proposals drafted and supported by the Department af Defense and introduced previously in the House of Representatives by Congressman Charles E. Bennett of Florida, who had long been interested in the rights of servicemen." All of the Senate bills providing for changes in military law and administrative discharge proceedings were referred to the Senate Armed Services Committee, of which I am a member. Although there was no disposition to hare Committee hearings on the bills, ripon my urging the Committee Chairman agreed to appoint a special subcommittee of the Armed Services Committee to join the Subcommittee an Constitutional Rights in joint hearings on the bills, under my chairmanship, with the understanding, of course, that the bills could be reported to the Senate floor only by vote of the Armed Services Committee.

'Senate Committee on the Judiciary 88th Cong. 18t Sess. Report onConntitutianal Rights of Dllhtsry Pelsonbel-Summs;y-~port bf Hearings by Subcommittee on Conatitulionsi Rights (Comm. Print 1064). The hearings and this summary report covered many areas in the admmrtration of just,,,in the Armed Services other than the operation of the court-martial system including admimstrative dmharges, a JAG Corps for the Navy, and moderniiatian and streamlimng of the Basrda for the Carreetmn of hl~htary Recorda.

' S. 2002 through S. 2018, 88th Cang., 1st Sess. (1863)."H.R. 8506 thravgh H.R. 8582, 88th Cong., 1st Sece. (1063) ' S . 145 through S. 762, 89th Cong., let Sear. (1065) " S 2806and S. 2907, 89th Cone, 2d Sese. (1066).

AGO ?BOOB 79

The joint hearings were held in January and March of 1966." The Subcommittees received testimony from twentyeight wit-nesses, including Assistant Secretary of Defense Thomas llorris. the Judge Advocate General af each of the military services, the judges of the Court of Military Appeals, law professors, and private practitioners of military law. The record extended over 1000 pages, including an extendve appendix, and over 200 pages of data submitted by the services in response to two additional detailed questionnaires.

In the months following these hearings, I drafted a bill to combine in one comprehensive package those proposed changes in military law which. over the course of the entire study, had prored to be necessary and beneficial. The result was that on June 26, 1967, I introduced an omnibus military justice bill, S. 2009 of the 90th Congress, consisting of five titles, title Ill of which WBS concerned with revisions of the court-martial system. Since mast of the proposed revisions, including amendments to the Uniform Code to increase the right to legally qualified defense counsel and to provide lawyers as presiding officers in courts-martial, were extremely controversial within the armed 2erwces and were opposed by the Department of Defense, it proved impossible during the remainder of the first session of the 90th Congress to gather enough support an the Armed Serv-ices Committee to get the bills reported.

Subsequently, on March 14, 1968. Congressman Bennett intraduced H.R. 15971, a bill supported by the Department of Defense designed to make a few "an-controversial changes in court-martial procedures, but containing few of the more extensive re-forms embodied in S. 2009. The House Committee on Armed Services favorably reported the bill, with minor amendments,:' and it passed the House of Representatives on June 3,1968.

'Joznt Hsarings on S. 715 through S. 782, S. ~ 9 0 8 , end S. 1907, Bdls

to Impiove the Adminratrotian of Jvsticr in the Amed Scrvioaa, 881078 the

Suboomnittcs on Constitutional Rights of the Comnnttee on the Judioinrv and a Spcoral SzLbcommztfse ai the Commzffec on A m s d Swvzoaa, US. Senate, 89th Cane, Id Sers. Prs. 1-8 and Addendum to Pt. 3 (1966) [here. after cited as Joint Hearings].

-'The Repart of the House Committee on Armed Service% H.R. REP.Yo. 1481 90th Cong. Zd Sers. (1968) states. ''In order to be J Y ~ D

that

;he bill &id be &ntro\wr%iaI I&%were sent to many arganiratlons

and indinduals, seking then odimons. In general, the bill was favored without comment. Where there -ere comments which were acceptable, the bill was altered slightly to accommodate the suggestmnr. There were some auegeatlans, however, which wew outade the limrred scape of the bill. Thebe x.111 hare to be considered when the Subcommittee glves further ean-.>deration to the major problems of the Unlform Code of Mlhtary Justice

THE MILITARY JUSTICE ACT OF 1968

The bill, as passed by the House and sent to the Senate, in my view did not contain the minimum reform8 necessary in any meaningful military justice legislation. However, because the bill did contain some revisions in court procedures desired by...